How to choose a mediator (negotiator)
When choosing a mediator, intermediary or a negotiator you must firstly remember that despite the widespread opinion about the understanding of the procedures for mediation, negotiation and intermediation, these are different procedures and legal institutions that are subject to different rules of implementation. They have different goals and number of participants and are regulated by different laws.
In the Russian legislation, the most resolved issues of dispute resolution through the application of the mediation procedure, therefore, Articles 15 and 16 of the Federal Law of 27.07.2010 No. 193-FZ “On an alternative procedure for resolving disputes with the participation of a mediator (mediation procedure)” sets out the requirements for mediators.
So, according to these articles of the law, the activity of a mediator can be carried out both on a professional and on a non-professional basis.
The activities of a mediator on a non-professional basis may be carried out by individuals who have reached the age of eighteen, and who has full legal capacity and have no criminal record. Individuals who have reached the age of twenty-five, have a higher education and have received additional professional education on the application of the mediation procedure can carry out the activities of a mediator on a professional basis.
Retired judges can also act as mediators on a professional basis. Lists of retired judges who have expressed a desire to carry out the activities of mediators on a professional basis are maintained by the councils of judges of the constituent entities of the Russian Federation.
The mediation procedure for disputes referred to a court or an arbitration court prior to the commencement of the mediation procedure can only be carried out on a professional basis.
Mediator’s activity is not a business activity.
Individuals carrying out the activities of mediators are also entitled to carry out other activities not prohibited by the legislation of the Russian Federation.
Mediators may not be individuals holding governmental positions in the Russian Federation, governmental positions in the constituent entities of the Russian Federation, governmental civil service positions, municipal service positions, unless otherwise provided for by the federal laws.
The mediator is not entitled to:
1) be a representative of any party;
2) provide any party with legal, consultations or other assistance;
3) carry out the activities of a mediator if, during the mediation procedure, he is personally (directly or indirectly) interested in its end result, including being related to a person who is one of the parties;
4) make public statements on the merits of the dispute without the consent of the parties.
The agreement of the parties or the rules for conducting the mediation procedure approved by the organization may establish additional requirements for the mediator, to ensure the conduct of the mediation procedure. This includes specifications for a mediator carrying out the activities of mediators on a professional basis.
It should be noted that the federal law contains only general requirements for mediators and information which may be insufficient for the parties of the dispute, to choose the mediator, who is most likely able to resolve the dispute and to ensure that all requirements of International and Russian legislation are met during its implementation in compliance with the principles of mediation.
Therefore, it is better to leave the issue of choosing a mediator to the organization that provides the mediation procedure. The parties can of course communicate any additional or particular wishes for the candidacy of a mediator (age, gender, education, practical experience, etc.).
After all, the choice of a mediator to resolve a specific conflict is a complex process that has various features.
For example, all mediators must have a specialized higher education of a mediator, or undergo professional retraining with a corresponding diploma, or receive additional professional education on the application of the mediation procedure.
And it is important to know that the level of professional knowledge of the mediator may differ depending on the year of completion of their education (special, basic or advanced), as well as the educational institution in which the mediator was trained. It must also be noted that that education can be specialized and detailed.
Therefore, it is better to try to choose the right organization that ensures the conduct of mediation procedures, i.e. an organization that carries out its activities in strict accordance with the laws, which, in turn, will be able to select a mediator for you to resolve the dispute as quickly and efficiently as possible.
When choosing a mediator, you can also take into account the information indicated on our website in the section “Tackling Corruption”.
You also need to remember that when choosing a mediator, statuses, regalia, a large number of certificates of advanced training and education, do not confirm the level of professionalism and practical skills, and do not guarantee you a quick and effective resolution of the conflict. The organizations are better equipped to know the capabilities of their mediators. This is an important point as oftentimes the resolution of a dispute depends on the personal characteristics of the mediator himself.
The Association is one of the few organizations in Russia that operates in strict accordance with the International and Russian legislation and will gladly select a mediator for you to resolve your dispute or conflict as quickly and efficiently as possible.
We are responsible for our activities, and we pursue the following principles:
- Independence from the influence of individual citizens, professional or social groups and organizations;
- Exclusion of actions related to the influence of the personal interests of the mediator, which impede the high-principled provision of mediation services;
- Not using the information that became known to the mediator in the course of providing intermediary services for personal purposes (strict protection of confidential information);
- Personal and professional neutrality of the mediator, compliance with the standards of professional ethics and rules of business conduct of the mediator;
- Refraining from any behaviour that could raise doubts about the objectivity and independence of the mediator;
- Prevention of conflict situations that can cause harm to the reputation of the association, the parties, and to the reputation of the mediator participating in the resolution.
- Immediately inform the management of the association and the parties of the dispute about any possible conflict of interest arising from the participation of the mediator in the mediation procedure;
- Compliance with the highest level of professionalism and standards of business conduct in public speeches, including written statements on behalf of the mediator and the Association;
- Taking measures to prevent, identify, and respond to cases of corruption that became known to the mediator in the course of mediation activities.
We are intolerant of the unfortunately common misrepresentation of the mediator’s role today which includes:
- Expressions of interest to act as a representative of one of the parties applying for the mediation procedure;
- Deliberate inducement of one of the parties to refuse mediation in favour of judicial resolution of the dispute with the provision of appropriate legal services;
- Conducting a dialogue with the parties of the dispute in an unfair and impartial manner;
- Visible or hidden preference towards any of the parties to the dispute;
- Escalating the conflict instead of mediating its resolution;
- Substitution of the mediation procedure for the provision of psychological assistance.
Issues of resolving disputes through the use of negotiation and mediation procedures are not completely clarified in the Russian legislation; therefore, when choosing a negotiator or mediator, one should be guided by the general rules of law and the rules of organizations whose members are negotiators or mediators. The parties to the dispute can also establish their requirements and criteria by agreement when choosing a negotiator or mediator to resolve a particular conflict.
It should be remembered that the organizations that ensure the conduct of mediation, negotiation and intermediation procedures may establish their own additional requirements for mediators, negotiators, intermediaries s as members of these organizations when they join and use alternative peaceful methods of resolving a dispute. Such additional requirements and criteria for the personal, professional characteristics of mediators and negotiators are established in our organization by the Charter of the Association, agreements are made with each member of the Association which include various provisions and regulations of the Association.